Civil Aviation Safety Amendment Regulations 2005 (No. 2) (Cth)

Civil Aviation Safety Amendment Regulations 2005 (No. 2)¹

Select Legislative Instrument 2005 No. 323

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Civil Aviation Act 1988.

Dated 15 December 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

WARREN TRUSS

Minister for Transport and Regional Services

Name of Regulations

These Regulations are the Civil Aviation Safety Amendment Regulations 2005 (No. 2).

Commencement

These Regulations commence on the day after they are registered.

Amendment of Civil Aviation Safety Regulations 1998

Schedule 1 amends the Civil Aviation Safety Regulations 1998.

Schedule 1 Amendments

(regulation 3)

[1] Readers Guide, after paragraph 52

insert

52A. A Manual of Standards is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and must be registered, and made publicly available, as required by that Act. The Federal Register of Legislative Instruments established under that Act is accessible on the World Wide Web at

[2] Readers Guide, paragraphs 79 to 91A, including heading before paragraph 79

substitute

How to seek changes to the Regulations or Manuals of Standards

79. This section sets out how you can ask CASA for a change to CASR or CAR or a Manual of Standards, and what CASA will do in processing your request.

80. If you think that a change to the Regulations, a Manual of Standards or advisory information is necessary, you should set out your suggestion in writing, and send it to CASA’s Regulatory Development Management Branch at any of:

Freepost:REPLY PAID 2005

Civil Aviation Safety Authority

CANBERRA ACT 2601; or

email:[email protected]; or

fax:(freefax) 1 800 653 897;

or deliver it to CASA at:

CASA Building

Corner Barry Drive and Northbourne Avenue

CANBERRA CITY ACT.

81. Your request should contain:

· your name

· the substance of the change you propose

· your reason for being interested

· a comprehensive justification of the proposal

· any information you have that supports the change.

82. CASA will register your request, acknowledge it, and submit it to an internal CASA regulatory development review committee for consideration. If that committee considers that the proposal should be pursued, CASA will submit the proposal to the Standards Consultative Committee (an industry consultative body). If that Committee supports the proposal, a CASA project for the proposed change will be set up.

83. Before taking any action, CASA will consider any comments received about the subject of your request, and will tell you whether they propose to go ahead with a change or not, and the reasons for the decision.

84. The next stage is formulation of the draft proposal and public consultation on it. CASA is required by section 16 of the Civil Aviation Act 1988 to consult with ‘government, commercial, industrial, consumer and other relevant bodies and organisations (including ICAO and bodies representing the aviation industry)’.

85. The basic procedure for consultation on a proposed change to the Regulations is as follows:

·CASA publishes a notice of its intention to make a rule, and the availability of the proposed rule, in a national newspaper and on its website

·the actual rulemaking proposal is released publicly as a Notice of Proposed Rule Making (NPRM), which sets out the proposed change and supporting information

·anybody interested has a reasonable time (normally 8 weeks) to comment.

The procedure for consultation on a change to a manual is similar except that the formal notice is called a Notice of Proposed Change (NPC).

86. An NPRM will include the actual text of the proposed amending Regulations, as drafted by the Office of Legislative Drafting and Publishing of the Commonwealth Attorney-General’s Department. The NPRM will also include:

·an introductory statement (‘Foreword’) extending an invitation to comment on the proposal

·background information, including a description of the problem addressed and why rule-making is necessary

·the objectives of the proposed rule

·the options that were considered and the constraints making them viable or not

·an impact analysis setting out the advantages and disadvantages of those options, and a description of the subjects and issues involved

·a Guide on how to comment (including addresses).

It may also include copies of proposed supporting material such as a draft Manual of Standards or guidance or advisory material. An NPC is similarly organised but the proposed change document is drafted by CASA technical specialists in cooperation with a CASA legislative drafter.

87. The notice will also give the date by which comments must be submitted, and where to send comments. There will be a response sheet in the NPRM or NPC, and you are urged to use it in responding. There is also an online response system at

88. Requests for extension of time to comment should be sent to CASA no later than 2 days before the announced expiry time. It may not be possible in a particular case to allow an extension of time to comment. However, extensions are normally granted if you have a substantive interest in the proposed change and a good reason for the extension. Bear in mind that extending the time for comment will delay the process.

89. Anybody can make a comment on a proposed change. Comments must be in writing and should preferably be submitted on the response form.

90. CASA will register all comments made. After the time for comments (or any extension of it) expires, CASA will evaluate all the comments received, and publish a summary of those comments, CASA’s response to them, the action taken, CASA’s policy, the action being taken, the finalised draft Regulations or manual change, and any associated guidance and supporting materials.

91. Finally, for changes to the Regulations only, the Minister for Transport and Regional Services must decide whether to recommend to the Governor-General that the proposed amending Regulations be made. If the Minister approves the proposed change, he or she submits the text of the proposed amending Regulations to the Governor-General for making as Regulations. After the amending Regulations are made, they are registered in the Federal Register of Legislative Instruments maintained under the Legislative Instruments Act 2003, and copies of the official text are made available. The Regulations are also tabled in each House of the Parliament within 6 sitting days after making, and then within a further 15 sitting days any Member or Senator can move to disallow them.

91A. Authority to issue a MOS rests with the Director of Aviation Safety. A MOS is also a legislative instrument and must be registered and tabled, and is subject to disallowance, in the same way as Regulations.

91B. After an amendment to either the Regulations or a MOS, a ‘compilation’ (setting out the text of the Regulations or the MOS as amended) must be prepared and placed on the Federal Register of Legislative Instruments. A compilation of the Regulations as amended is prepared by the Office of Legislative Drafting and Publishing and is normally registered on the same day as the Regulations as amended commence. CASA is responsible for preparing compilations of a MOS as amended.

[3] Subregulation 11.220 (1), note

substitute

Note An instrument granting an exemption is a legislative instrument — see regulation 11.215 and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It must be registered in accordance with that Act and must be tabled in both Houses of the Parliament within 6 sitting days after its making.

[4] Regulation 11.225, note 2

substitute

Note 2 An instrument granting an exemption is a legislative instrument — see regulation 11.215 and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It must be registered in accordance with that Act and must be tabled in both Houses of the Parliament within 6 sitting days after its making.

[5] Regulation 11.230, note

substitute

Note An instrument granting an exemption is a legislative instrument — see regulation 11.215 and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It therefore commences in accordance with section 12 of that Act.

[6] Subregulation 11.245 (1), note 1

substitute

Note 1 A direction is a legislative instrument — see subsections 98 (5A) and (5B) of the Act and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It must be registered in accordance with the latter Act and must be tabled in both Houses of the Parliament within 6 sitting days after its making.

[7] Regulation 11.250, note

substitute

Note A direction is a legislative instrument — see subsections 98 (5A) and (5B) of the Act and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It therefore commences in accordance with section 12 of that Act.

[8] Subregulation 11.265 (3), including the notes

substitute

Note Manuals of Standards are documents which support CASR by providing detailed technical material, such as technical specifications or standards. See generally ‘Incorporated Manuals’ (paragraphs 52 and 53) in the Guide. Manuals of Standards are disallowable instruments and are subject to registration and disallowance under the Legislative Instruments Act 2003.

[9] Subregulation 21.029B (6), notes

substitute

Note The power of CASA to issue a type acceptance certificate subject to a condition under subregulation (2) must be exercised by the Director personally: see paragraph 11.260 (2) (b).

[10] Subregulation 21.029C (2), note

substitute

Note The power of CASA to refuse to issue a type acceptance certificate must be exercised by the Director personally: see paragraph 11.260 (2) (c).

[11] Regulation 21.051, note 1

substitute

Note 1 The power of CASA to suspend or cancel a type acceptance certificate under subregulation (4) must be exercised by the Director personally: see paragraph 11.260 (2) (d).

[12] Regulation 21.171, note

substitute

Note Under Part 200 (Aircraft to which CASR do not apply), certain Australian aircraft are authorised to fly without a certificate of airworthiness.

[13] Subregulation 39.001 (5), except the note

substitute

(5)An airworthiness directive issued under subregulation (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

[14] Subregulation 65.033 (1), note

substitute

Note A Manual of Standards is a legislative instrument — see subsections 98 (5A) and (5B) of the Act and subparagraph 6 (d) (i) of the Legislative Instruments Act 2003. It must be registered in accordance with the latter Act and must be tabled in both Houses of the Parliament within 6 sitting days after its making.

[15]Part 91

substitute

Part 91 General operating and flight rules

Note This Part is made up as follows:

Subpart 91.AApplicability and definitions

91.005Applicability

Subpart 91.D Operational procedures

91.830Reduced vertical separation minimum (RVSM) operations

91.850Required navigation performance (RNP) operations

91.865Basic area navigation (B-RNAV) operations

91.870Precision area navigation (P-RNAV) operations

91.875Minimum navigation performance specification (MNPS) operations

91.880Australian area navigation (AUSEP) operations

91.885Navigation trial operations

91.890Area navigation (RNAV) operations

Subpart 91.U Navigation authorisations

Division 91.U.1 Preliminary

91.5000Applicability

91.5005Definition for this Subpart

91.5010Issue of Manual of Standards

91.5015How long navigation authorisations remain in force

91.5020Contravention of conditions of navigation authorisations

91.5025Removal of aircraft from navigation authorisations — holder ceasing to operate aircraft

91.5030Aircraft allotted new registration marks

Division 91.U.2 RVSM airworthiness authorisation

Division 91.U.3 RVSM operational authorisation

Division 91.U.4 RNP operational authorisation

91.5150RNP types

91.5155Applications for RNP operational authorisation

91.5160Criteria for grant of RNP operational authorisations

91.5165RNP operational authorisations

91.5170Conditions on RNP operational authorisations

Division 91.U.5 B-RNAV operational authorisation

Division 91.U.6 P-RNAV operational authorisation

Division 91.U.7 MNPS operational authorisation

Division 91.U.8 AUSEP operational authorisation

Division 91.U.9 Navigation trial operational authorisation

Division 91.U.10 RNAV operational authorisation

Subpart 91.AApplicability and definitions

91.005Applicability

(1)This Part applies to:

(a)the operation of Australian civil aircraft operating in or outside Australian territory; and

(b)the operation of a foreign registered civil aircraft flying into or out of, or operating in, Australian territory.

Note Each Subpart has its own applicability provision to describe its subject-matter.

(2)In spite of paragraph (1) (a):

(a)Annex 2, Rules of the Air, to the Chicago Convention applies to the operation of an Australian civil aircraft over the high seas; and

(b)the rules of a foreign State relating to the flight and manoeuvre of aircraft apply to the operation of an Australian civil aircraft in that State; and

(c)subject to any contrary intention in another provision of this Part, a requirement of this Part applies in the circumstances referred to in paragraph (b) if it is not inconsistent with, or is more stringent than, the corresponding requirement of the law of the foreign State.

Subpart 91.D Operational procedures

91.830Reduced vertical separation minimum (RVSM) operations

Note This regulation heading is reserved for future use. For the rules presently applying to such operations, see regulations 181A to 181X of CAR.

91.850Required navigation performance (RNP) operations

(1) The operator of an aircraft must not permit it to start a flight during which it may operate in an RNP operation unless:

(a) a flight plan for the flight has been submitted to air traffic services; and

(b) the flight plan complies with regulation 241 of CAR so far as those requirements apply to the operation.

Penalty: 25 penalty units.

(2)In this regulation:

RNP operation means an aircraft operation of a kind for which the airspace or route design or aircraft separation minima for the operation are based on an RNP type.

Note An operator who does not hold an RNP operational authorisation will not necessarily be excluded by air traffic services from airspace in which the route design, route spacing and aircraft separation minima are based on an RNP type. However, such an operator would not be given the separation minima that would be given to an operator who holds an RNP operational authorisation.

91.865Basic area navigation (B-RNAV) operations

Note This regulation heading is reserved for future use.

91.870Precision area navigation (P-RNAV) operations

Note This regulation heading is reserved for future use.

91.875Minimum navigation performance specification (MNPS) operations

Note This regulation heading is reserved for future use.

91.880Australian area navigation (AUSEP) operations

Note This regulation heading is reserved for future use.

91.885Navigation trial operations

Note This regulation heading is reserved for future use.

91.890Area navigation (RNAV) operations

Note This regulation heading is reserved for future use.

Subpart 91.UNavigation authorisations

Division 91.U.1Preliminary

91.5000 Applicability

(1) This Subpart applies in relation to navigation authorisations held by Australian operators.

(2) This Subpart sets out the administrative processes to be followed by CASA and applicants, and the technical, training, operational and monitoring standards that form the basis of the navigation authorisations.

91.5005Definition for this Subpart

In this Subpart:

Australian operator means an operator whose principal place of business, or whose place of permanent residence, is in Australian territory.

MOS Subpart 91.U means the manual known as Manual of Standards — Subpart 91.U, as issued by CASA from time to time.

navigation authorisation means an RNP operational authorisation (within the meaning given by subregulation 91.5155 (1)).

Note In future it is intended that the definition will be expanded to cover other kinds of navigation authorisation (such as RVSM approvals, which are presently dealt with in Division 5 of Part 12 of CAR).

91.5010Issue of Manual of Standards

CASA may issue a Manual of Standards for this Subpart that provides for the following matters:

(a) equipment requirements;

(b) training requirements;

(d) operating procedures;

(e) reporting of navigation or system errors;

(f) any other matter required or permitted by this Subpart to be provided for by the Manual of Standards;

(g) any matter necessary or convenient to be provided for the effective operation of this Subpart.

Note 1 A Manual of Standards is a legislative instrument for the purposes of the Legislative Instruments Act 2003: see paragraph 6 (d) of that Act and subsections 98 (5A) and (5B) of the Civil Aviation Act 1988.

Note 2 Subpart 11.J sets out procedures for the issue, amendment and revocation of a Manual of Standards.

91.5015How long navigation authorisations remain in force

(1) Subject to subregulation (2), a navigation authorisation remains in force unless it is cancelled.

(2) A navigation authorisation is not in force during any period in which it is suspended.

91.5020Contravention of conditions of navigation authorisations

(1) The holder of a navigation authorisation must not contravene a condition of the authorisation.

Penalty: 25 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

91.5025Removal of aircraft from navigation authorisations — holder ceasing to operate aircraft

(1) If the holder of a navigation authorisation ceases to be the operator of an aircraft covered by the authorisation, the holder must notify CASA, in writing, within 14 days after ceasing to be the operator.

Penalty: 5 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

(3) After receiving a notice under subregulation (1), CASA must:

(a) cancel the navigation authorisation; and

(b) if any other aircraft is or are covered by the authorisation, give the holder a new navigation authorisation covering the remaining aircraft.

(4) CASA must give the holder written notice of the cancellation, and the new authorisation (if any), setting out:

(a) the date of the cancellation; and

(b) any other information CASA thinks should be included.

(5) A new navigation authorisation given under paragraph (3) (b) takes effect on the cancellation of the replaced authorisation.

91.5030Aircraft allotted new registration marks

If a navigation authorisation identifies an Australian aircraft by reference to its registration mark, but that registration mark has been replaced with a new one, the reference in the authorisation to the old registration mark is taken to be a reference to the new registration mark.

Note A navigation authorisation identifies an aircraft by both its serial number and its registration mark — see paragraph 91.5165 (d).

Division 91.U.2RVSM airworthiness authorisation

Note This Division is reserved for future use.

Division 91.U.3RVSM operational authorisation

Note This Division is reserved for future use.

Division 91.U.4RNP operational authorisation

Note RNP means required navigation performance. An RNP type is a level of navigation performance accuracy expressed as a distance, in nautical miles.

91.5150RNP types

There are the following RNP types:

(a) RNP 4;

(b) RNP 10.

Note The number in an RNP type is the level of navigation performance accuracy for the type, in nautical miles. Hence, RNP 4 requires a navigation performance accuracy of 4 nautical miles.

91.5155Applications for RNP operational authorisation

(1) An RNP operational authorisation is an authorisation granted to an Australian operator by CASA certifying that the operator is qualified to operate a specified aircraft in a specified aircraft operation to which a specified RNP type applies.

(2) An Australian operator may apply to CASA for the grant of an RNP operational authorisation.

(3) The application:

(a) must be made in writing; and

(b) must specify the RNP type or types proposed to be covered by the authorisation; and

(c) must specify the aircraft, or each aircraft, proposed to be covered by the authorisation by reference to the aircraft’s registration mark and serial number; and

(d) must contain, or be accompanied by:

(i) written information, in accordance with MOS Subpart 91.U, that shows whether each of those aircraft meets the standards referred to in paragraph 91.5160 (a); and

(ii) a written description, in accordance with MOS Subpart 91.U, of the training program proposed by the operator for the members of the operator’s flight crew who would, if the authorisation were to be granted, operate any or all of the aircraft; and

(iii) a written description, in accordance with MOS Subpart 91.U, of the program proposed by the operator for the continued airworthiness of the aircraft; and

(iv) a written description, in accordance with MOS Subpart 91.U, of the operational procedures for operating the aircraft in aircraft operations of the kind for which the airspace or route spacing and separation minima are based on the RNP type, or an RNP type, for which the authorisation is sought; and

(v) any other information required by MOS Subpart 91.U.

91.5160Criteria for grant of RNP operational authorisations

For regulation 11.055, an applicant for an RNP operational authorisation must show that:

(a) each aircraft proposed to be covered by the authorisation is equipped in accordance with the standards set out in MOS Subpart 91.U for equipment for aircraft operated under such an authorisation; and

(b) the operator would, if the authorisation were to be granted, be able to comply with the conditions to which the authorisation would be subject.

91.5165RNP operational authorisations

An RNP operational authorisation:

(a) must contain a reference number by which it can be identified; and

(b) must state the name of the operator and the date when it comes into force; and

(d) must specify the aircraft, or each aircraft, covered by it by reference to the aircraft’s registration mark and serial number; and

(e) must set out any conditions imposed on the authorisation; and

(f) may include any other information CASA thinks should be included.

91.5170Conditions on RNP operational authorisations

In addition to any other conditions imposed by or under Part 11, an RNP operational authorisation is subject to the following conditions:

(a) that the operator to which it is granted has, and complies with, a program for the continued airworthiness of each aircraft covered by the authorisation to ensure that it will continue to meet the standards for continued airworthiness set out in MOS Subpart 91.U;

(b) that the operator has, for the members of the operator’s flight crew who will operate the aircraft, a training program that complies with the standards for training programs set out in MOS Subpart 91.U;

(c) that the operator has operating procedures for operating the aircraft in aircraft operations for which the airspace or route design and separation minima are based on an RNP type covered by the authorisation;

(d) the aircraft’s operator or pilot-in-command reports to CASA any navigation or system error of a type specified for that purpose in MOS Subpart 91.U.

Division 91.U.5B-RNAV operational authorisation